The Key Elements of a Workplace Retaliation Claim

Have you recently lost your job due to suspicious circumstances—suspicious meaning that you recently complained to HR about a frisky higher-up, or an investigation was recently opened because you engaged in whistleblowing activity, or you demanded higher pay because your male counterpart, of the same skill level and same position, was making more? If so, you may have a wrongful termination case.

Wrongful termination refers to any illegal reason for discharging an employee. There are many laws in place that prohibit employers from firing individuals for specific reasons. This includes those that violate an employment contract or that are discriminatory or retaliatory in nature. Retaliatory claims typically arise because an employee raised an issue regarding discrimination, or some other unlawful conduct in the workplace.

If you believe that you were wrongfully terminated, reach out to the Los Angeles workplace rights attorneys at the Workplace Rights Law Group to discuss your case. We can review your evidence, listen to your story, and give you a free and accurate assessment of your claim.

What Makes a Retaliation Case?

California, like most states, is an at-will employment state. This means that employers do not need a reason to hire or fire employees. If your employer fires you after you bring a lawsuit against him or her and says it is because he or she wants to fill your position with a family member, the judge may have no reason to doubt them. You need to create that reason by proving that there is a specific law that makes the reason for your firing illegal.

What does that mean? After all, is not retaliatory termination illegal in and of itself?

While it is true that retaliatory discrimination is illegal, it is difficult to prove without certain elements to back you up. In addition to your protected activity and sudden and unexplained discharge, you need to show that your employer acted in a hostile way pending your termination and that the hostile behavior began after you took adverse legal action against him or her.

For instance, say you participated in a discrimination hearing. You did not bring the discrimination claim yourself, but you testified on behalf of the victim. Not long after your testimony, your manager starts asking you to work late on menial tasks and threatens your job security if you do not. Then, your boss informs you that you are being demoted. Your new position pays significantly less than your last. For the first time in your history with the company, you receive a negative performance review.

While each of these things could be a coincidence, when compounded like that, and when they occur directly after you took part in a protected activity like reporting an illegal employment practice, they could serve as circumstantial evidence in your favor.

Elements of a Successful Retaliatory Termination Case

So, you have your side of the story, but is that enough? Not by a long shot. If you hope to win your retaliatory discharge case, you must be able to prove three essential elements:

  1. That you took part in a protected activity or were witness to and reported harassment or discrimination;
  2. That your employer took adverse action against you as a result (i.e. you were fired, demoted, received a pay cut, or were treated with hostility afterward); and
  3. That a link exists between the adverse job action and the protected activity in which you were engaged.

“Protected activity” refers to activity that is either in opposition to an employment practice or the participation in activities designed to root out unlawful conduct in the workplace.

Necessary Evidence

While it would be nice to find the proverbial “smoking gun” (an email from one supervisor to the next patting themselves on the back for getting rid of “the snitch,” or a voicemail transcription about how they were going to let you go without having a retaliatory discharge claim brought against them) chances are that your employer is not naïve enough to leave hard evidence behind. For this reason, circumstantial evidence is key.

Circumstantial evidence may include patterns of adverse actions towards employees who have made similar complaints, or evidence that employees who did not complain about illegal practices or behaviors were treated better. One prime example of circumstantial evidence that may help your case is a long line of stellar employee reviews, and one negative one directly after your participation in the protected activity. Though circumstantial evidence may seem inconsequential when presented individually, when presented collectively, it can be incriminating.


Causation may be the most difficult aspect to prove in a retaliatory discharge case. “Causation” refers to the “motive” behind your termination, but how does one prove the internal motive of another? To make matters even more difficult, the U.S. Supreme Court established a “but for” clause. This essentially requires employees to prove that if it were not for their participation in the protected activity, the adverse job action would not have occurred. This can be difficult, as many employers cite poor job performance or restructuring as cause for sudden termination.

Your Options in the Face of a Retaliatory Termination Case

If you believe that you were wrongfully terminated because of your participation in a protected activity or because you reported an instance of discrimination or harassment, call the Los Angeles workplace rights attorneys at Workplace Rights Law Group. It is not enough to prove that a link exists between the adverse job action and the protected activity in which you were engaged. You also need to show that your employer fired you specifically because of your involvement in the protected activity. Thanks to the “but for” clause, this is more difficult than ever.

The Los Angeles workplace rights attorneys at the Workplace Rights Law Group can advise you on what you need to do to build a viable case and win your claim. Though the road ahead of you may be a long and tumultuous one, with our team on your side, we can see you through to a successful outcome with little to no additional damage. If you are ready to stand up for your rights and fight back against illegal employment practices, call our team or contact us online to get started.


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